FEDERAL COURT OF AUSTRALIA

Applicant M115/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1448

MIGRATION – whether applicationdiscloses reasonable basis – whetherextension of time should be granted – procedural fairness - whether practical injustice shown

Migration Act 1958 (Cth) s483

Jurisdiction of the Federal Magistrates Legislation Amendment Act 2001 (Cth)

Muin v Refugee Review Tribunal [2002] HCA 30, (2002) 190 ALR 601, cited

Re Batuwantudawa [2003] FCA 684, followed

Re Minister for Immigration and Multicultural Affairs: Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502, applied

Applicant A17/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1080, referred to

APPLICANT M115 OF 2003 v THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA AND A H SMITH SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MR ADOLFO GENTILE IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL

V710 OF 2003

MARSHALL J

8 DECEMBER 2003

MELBOURNE

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application be dismissed as disclosing no reasonable cause of action.

2.                  The respondents’ motion otherwise be dismissed.

3.                  The applicant pay the respondents’ costs of the application, including the costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This proceeding was remitted to the Court by the High Court of Australia on 26 May 2003. In the High Court the applicant applied for constitutional writs directed to the respondents in respect of a decision of the Refugee Review Tribunal (“the RRT”), which refused the applicant a protection visa.

2                     Paragraph 1 of the draft order nisi, omitting the grounds relied upon was as follows:

“1.       The first and second respondents DO SHOW CAUSE WHY A WRIT OF PROHIBITION should not be issued out of this Court directed to the first respondents (sic) prohibiting them from proceeding further with matter No V96/05122 in the Refugee Review Tribunal and WHY A WRIT OF CERTIORARI should not be issued out of this court directed to the first (sic) respondents removing into this Court to be quashed the decision made by them on the 27^th day of February 1997 in the said matter and the order made by them on the 27^th day of February in the said matter upon the grounds that …”

3                     The reference to “the first respondents” occurring immediately after the mention of “CERTIORARI” appears to have been intended to be a reference to the second respondents, given that the relevant decision was one made by the RRT.

4                     The RRT’s decision is dated 27 February 1997. The applicant applied on three occasions thereafter for the first respondent to exercise his discretion to grant the applicant a visa. The last request was refused on 16 February 2000. Shortly thereafter the applicant was joined in representative proceedings in the High Court in the matter which became known as Muin v Refugee Review Tribunal [2002] HCA 30, (2002) 190 ALR 601.

5                     On 9 October 2003, the Court ordered by consent that the application for an order nisi and the hearing of the return of the order nisi, if granted, be conducted as a single hearing. The order also provided that:

“The applicant file and serve:

(a)               a statement of contentions of relevant facts and law setting out:

(i)                 particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought; and

(ii)               if the applicant requires an extension of time in which to file this application, the reasons why an extension of time should be granted; and

…

(b)       any affidavits which the applicant intends to rely on at the hearing.”

6                     On 5 November 2003, the applicant filed a document entitled “contentions of law”. He did not file any affidavit material. In his contentions the applicant contended that the RRT failed to accord him procedural fairness by relying upon “a number of cables relating to the [Janatha Vimukthi Peramuna party] in Sri Lanka … without giving [the applicant] the opportunity to respond to those materials.” Restating the point by an alternative formulation, the applicant submitted that the RRT:

“failed to give [him] particulars of information which the Tribunal considered or ought reasonably to have considered as a reason or reasons for affirming the decision under review.”

7                     At paragraph 13 of the applicant’s contentions, the applicant said:

“I do require an extension of time in which to file this application, as it would not be fair if I was stopped from making my arguments …”

8                     By motion dated 26 November 2003, made returnable this afternoon, the respondents sought an order that the application be dismissed under O20 r2 of the rules of Court as disclosing no reasonable basis. In the alternative, an order was sought dismissing the application for failure to comply with an order of the Court.

9                     The first question which arises under O 20 r 2 is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to file his application. I consider that it would be futile to grant the relief claimed against the first respondent. As Gray J said, in respect of a materially identical plea for relief in Re Batuwantudawa [2003] FCA 684 at [14]:

“…the claim in the draft order nisi for prohibition is limited to the matter designated by its proceeding number in the Tribunal. The Tribunal has completed its dealing with that proceeding. There is nothing left to prohibit.”

10                  The next question which arises is whether there are reasonable grounds for contending that the applicant should be granted an extension of time in which to apply for certiorari. In that context it may be observed, as Gray J did in Batuwantudawa at [7], that no request is made for mandamus which might result in the redetermination of the application in the RRT.

11                  At [8] in Batuwantudawa Gray J said:

“The time limited by the rules of the High Court for an application for certiorari is fixed by O 55 r 17 of those rules.  An application must be made not later than six months after the date of the decision concerned.  Of course, that is subject to the general power in O 60 r 6 of the High Court Rules to enlarge any of the time appointed by the rules.  It falls to this Court to exercise that power of enlargement, if it is to be exercised, as a result of the remittal of the proceeding to this Court.”

12                  In order to consider the request for dismissal under O 20 r 2 it would ordinarily be necessary to examine the reasons of the RRT to observe whether the alleged denial of procedural fairness may arguably be established. If that ground is arguably established it would ordinarily be in the interests of justice to extend time.

13                  Before the RRT the applicant claimed, inter alia, that he feared persecution by Sri Lankan authorities on account of imputed political opinion in the form of support for the Janatha Vimukthi Peramuna party (“the JVP”).

14                  At pp.5 to 8 of its reasons for decision the RRT said:

“As discussed, in order to satisfy the Convention definition of a refugee, the applicant must have a well-founded fear of persecution. He must fear persecution, and that subjective fear must be well-founded when considered on an objective basis. There must be a real chance that the applicant will be persecuted for a Convention reason if he returns to Sri Lanka, which I find is the applicant's country of nationality.

Discussion of claims

Imputed support for JVP

In order to put the applicant’s claims in context, it is appropriate to set out some relevant country information regarding the JVP.

Country information from a wide range of sources indicates that there was a violent military crackdown on the JVP insurrection in the late 1980's. This reportedly involved the extrajudicial deaths of thousands of suspected JVP activists and sympathisers (Patricia Hyndman, Report Re: Sri Lankan Refugee Status Applications, 21 November 1992 at p7) and the arbitrary arrest and torture of suspects and their relatives (Amnesty International Report 1989 at p201).

Following this crackdown, the Australian High Commission in Colombo advised in cable O.CL32936 of 3 September 1991:

The JVP has been destroyed, crushed, eliminated, .. Fear of the JVP no longer constitutes a valid reason not to return to Sri Lanka.

Subsequently the Australian High Commission in Colombo reported the views of an unidentified source in cable 0. CL35475 of 14 May 1993:

With regard to JVP cases, source has provided a clear indication that the security authorities are no longer interested in pursuing old cases where the connection to the JVP was minor and unproved.

In a more recent cable, CL37369 of 27 February 1995, DFAT reported:

As advised in recent RRT cases, the JVP is not a proscribed organisation. It is accepted by the new Sri Lankan government as a minor political entity, and is able to operate in Parliament as any other minor political party would do. A person would no longer be detained simply because of membership or past membership of the JVP. In fact, known former JVP operatives and current JVP members hold significant positions in government, semi-government, academic institutions, and private business.

.... Involvement with the JVP during the 1988-90 communal unrest of itself alone, will no longer be a basis for detention, unless a case exists to prosecute for criminal actions.

Drawing on a range of sources including MP'S representing JVP successor parties, human rights non-governmental organisations and police, the Australian Embassy in Colombo advised in cable CL37966 of 28 August 1995:

..... There is no evidence of a re-emergence of JVP militancy and police claim that they have been told to leave the JVP alone.

........

.... For most of the early 1990's it was regarded as of marginal political importance.

.....

All our sources confirmed that the JVP was not making a comeback as an armed militant force. ...

Our discussions with both international and local organisations concerned with the monitoring of persons detained by security forces also suggest that there are few, if any, cases of Sinhalese being detained for alleged terrorist activities. ...

There have been a number of reports that the JVP is planning a comeback and that it is attempting to mobilise support through a poster campaign, a recruitment drive and infiltration of the political and social fabric by JVP elements (Inform, Situation Report, February 1995 at p 10, The Economist, 15 April 1995 at p28 and The Sunday Times, 5 March 1995). However, reports suggest that the JVP faces difficulties in that it has split into a number of factions and lost much of its executive and support base (The Sunday Leader of 19 February 1995 at p 18). There have been some reports that the JVP have been carrying out robberies to raise funds to buy arms (“Leftwing rebels try to re-arm in southern Sri Lanka”, Reuters World Service, 24 September 1995).

On 21 September 1995, the UNHCR reported on the position of JVP members and sympathisers (CX 13869). The UNHCR in Canberra reported that there had been a substantial change in the situation in Sri Lanka with regard to the JVP since the early 1990's:

Since then the situation of former JVP activists, members and supporters has continuously improved and any remaining risks disappeared (at the latest) shortly before the parliamentary elections in Sri Lanka (16 August 1994) in which JVP participated and agitated and won one seat in parliament. ....

c) The JVP is active in public, .... JVP activities, including by former JVP activists supporters and members do no longer lead to intervention by the security authorities.

The US Department of State Country Reports on Human Rights Practices for 1995 (March 1996) states at p6:

With the legalization of the Sinhalese Janatha Vimukthi Peramuna (JVP), a party which led to an insurgency in the south suppressed by the Government in 1988-89, JVP members were no longer subject to arrest and torture as in the past.

A report in The Sydney Morning Herald (“Tigers on attack as JVP spectre returns”, 8 April 1996 at p8) confirmed that whilst the JVP is trying to regroup, there are no current signs that it is arming itself for an uprising.

Against this background then, I will now assess the applicant's claims.

I accept the applicant’s claim that he and his brother were detained in the late 1980's and early 1990's for suspected JVP activity. This was a period when thousands of people were arbitrarily arrested. However, as the country information referred to earlier indicates, there has been a substantial change of circumstances since that time. Whilst the JVP or elements of it are attempting to regroup, is not now involved or capable of the large-scale, concerted campaign of violence that it engaged in during the late 1980's. The JVP has been a marginal force since the early 1990's. The JVP is not now a militant force. Having regard to this country information and to the fact that the applicant has never been involved in the JVP, I find that the chance of the applicant being persecuted by the authorities for imputed support of the JVP should he return to Sri Lanka is remote.”

15                  The RRT accepted that the applicant and his brother were detained in the late 1980s and early 1990s for suspected JVP activity, together with many thousands of people who were subject to arbitrary arrest. It then relied on the country information set out above to find that “there has been a substantial change of circumstances since that time.”

16                  The RRT found that the JVP:

·                    is not now involved or capable of the large scale campaign of violence it engaged in during the late 1980s;

·                    it not now a militant force.

17                  The RRT concluded this aspect of its reasons for decision by saying:

“Having regard to this country information, and to the fact that the applicant has never been involved in the JVP, I find the chance of the applicant being persecuted by the authorities for imputed support of the JVP should he return to Sri Lanka is remote.”

18                  There is no indication in the reasons of the RRT that it gave the applicant an opportunity to comment on the country information before it made its decision. However, in the absence of any affidavit material from the applicant it is impossible to know whether it would have made any difference to his case if he had received prior notice of the country information referred to by the RRT.

19                  As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs: Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502 at [37]:

“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

20                  In Lam, the Chief Justice said at [38]:

“No practical injustice has been shown. The applicant lost no opportunity to advance his case. …It has not been shown that there was procedural unfairness.”

See also per McHugh and Gummow JJ at [105] and [106], Hayne J at [115] and Callinan J at [149].

21                  Similarly in this case the applicant has not shown what he would have said if the RRT had given him the country information to comment upon, assuming (without knowing) that it did fail to do so. The applicant said, in his oral submission today, that he is currently unable to get information from Sri Lanka. That is not the point. The issue is what he would have said to the RRT prior to its decision being given in 1997 or what he would have done if he had been shown the relevant country information before the RRT’s decision.

22                  I reject the second ground for the respondents’ motion concerning failure to take a step required by an order of the Court. The applicant’s contentions do particularise his procedural fairness point, which essentially is his only point. The extension of time is traversed in the contentions, albeit to the limited extent discussed above. The matter, had it proceeded to trial, given its lack of complexity would have been more appropriate to be dealt with by the Federal Magistrates Court and I would have so ordered.

23                  In Applicant A17/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1080, the Court mentioned, in dicta, at [8] that:

“I note that on 5 September 2003, I informed the solicitor for the applicant that as the decision of the Refugee Review Tribunal subject to challenge was made prior to 2 October 2001 the proceeding was incapable of being transferred to the Federal Magistrates Court on account of it not having jurisdiction in such matters until that time.  On that basis I made order No 2 of the orders made on 5 September 2003. It is not appropriate to transfer the proceeding in these circumstances and given that there has been failure to comply with what, in effect, was a self executing order the application stands dismissed.”

24                  On reflection I no longer consider it to be a correct statement that the date of the decision of the Refugee Review Tribunal is determinative of whether a matter can be transferred to the Federal Magistrates Court. I do so for the following reasons:

·                    s483A of the Migration Act 1958 (Cth) (“the Act”) gives the Federal Magistrates Court the same jurisdiction as this Court in relation to a matter arising under the Act;

·                    Item 18 of Pt 2 of Sch 3 to the Jurisdiction of the Federal Magistrates Legislation Amendment Act 2001 (Cth) (“the FM Act”) provides:

“The amendments to the Migration Act 1958 made by this Schedule apply in relation to applications made under s477 of that Act after the commencement of this item. (emphasis supplied).

·                    The FM Act commenced on 1 October 2001.

25                  In my view, the preferable analysis is that any application commenced in the High Court and remitted to this Court may be transferred to the Federal Magistrates Court provided that the application is commenced post 1 October 2001.

26                  Accordingly, for the above reasons I order as follows:

1.         The application be dismissed as disclosing no reasonable cause of action.

2.         The respondents’ motion otherwise be dismissed.

3.         The applicant pay the respondents’ costs of the application, including the costs of the motion.

Associate:

Dated:              10 December 2003